Morton and Repatriation Commission - [2004] AATA 328

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 328
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/262

GENERAL ADMINISTRATIVE DIVISION
)

Re TERENCE MORTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M Carstairs, Member
Date12 March 2004
PlaceBrisbane

Decision For reasons given orally the decision under review is set aside and the Tribunal substitutes the decision that bipolar disorder and alcohol abuse are defence caused within the meaning of s70 of the Veterans’ Entitlements Act (1986), with effect from 24 February 1999. The matter is remitted to the respondent for assessment of the rate of pension payable.
….(Sgd) M J Carstairs….
Member

VETERANS’ ENTITLEMENTS – defence caused injury or disease – bipolar disorder and alcohol abuse – severe psychosocial stressor – severe stressor – decision set aside – matter remitted for assessment of pension
Veterans’ Entitlements Act 1986, s 70, 120, 120B, 196B
O’Neil v Repatriation Commission [2001] FCA 1492
Hyland v Repatriation Commission [2003] AATA 597
Repatriation Commission v Levi (1994) 61 FCR 189.
Schmid vComcare [2003] FCA 1057
WRITTEN REASONS FOR DECISION

30 March 2004 Ms M Carstairs, Member

1.      This is an application by Terence Morton (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB), varying a decision made by a delegate of Repatriation Commission (the respondent) rejecting the applicant’s claim to have medical conditions attributed to his defence service.
2.      At the hearing the applicant was represented by Mr D O’Gorman of counsel instructed by Gilshenan and Luton, solicitors. Mr M McAninly represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) numbered T1-T6 as well as exhibits marked A1- A4 for the applicant and R1- R7 for the respondent.
BACKGROUND
4.      The applicant is aged fifty-eight. He joined the Royal Australian Air Force at the age of fifteen on 17 January 1961 and served as an armament fitter. He served in Malaysia in two periods the first from 17 May 1967 to 14 April 1969, and the second from 20 February 1973 to 27 March 1974. He was discharged medically unfit on 15 August 1974, being diagnosed with schizophrenia at that time.
5.      The parties agree that the period between 7 December 1972 and 15 August 1974 is the relevant period of service in regard to the applicant’s entitlements under the Veterans’ Entitlements Act 1986 (the Act).
6.      The applicant made a claim to have paranoid schizophrenia accepted as due to his defence service on 24 May 1999. The respondent rejected the claim, as did the VRB, though the VRB varied the diagnosis, and rejected all claims based upon psychiatric conditions. The applicant sought review with this Tribunal on 27 March 2001.   After the decision was handed down orally, the respondent requested written reasons by letter dated 17 March 2004.
EVIDENCE
7.      In a written statement dated 28 June 2001 (exhibit A1) the applicant stated that during his first tour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morton and Repatriation Commission

Details

AGLC: Morton and Repatriation Commission [2004] AATA 328
Case: [2004] AATA 328
Decision Date: 12 March 2004

CaseChat Overview and Summary

The case of Morton and Repatriation Commission involved the applicant, Morton, and the Repatriation Commission, which was established to manage veterans' entitlements. The dispute centred on the assessment of Morton's mental health conditions, specifically whether his bipolar disorder and alcohol abuse were attributable to his service in the defence force. The case was heard in the Federal Court of Australia, which has jurisdiction over matters involving the interpretation and application of federal legislation, including the Veterans' Entitlements Act.

The primary legal issue before the court was whether Morton's mental health conditions qualified as "defence caused" under section 70 of the Veterans' Entitlements Act. The court needed to determine if there was sufficient evidence to establish a causal link between Morton's service and his diagnosed conditions. This involved a detailed examination of medical records, expert opinions, and the statutory framework governing veterans' entitlements. The court also had to consider the appropriate legal standard for establishing such a causal link and whether the Commission's original decision was supported by the evidence.

The Federal Court found that the evidence presented did establish a sufficient causal connection between Morton's service and his mental health conditions. The court concluded that the Repatriation Commission's original decision to deny the claim was not supported by the evidence, as it failed to adequately address the medical evidence linking Morton's service to his conditions. The court set aside the Commission's decision and substituted its own, recognising that Morton's bipolar disorder and alcohol abuse were indeed defence caused. Consequently, the matter was remitted to the Commission for reassessment of the pension rate payable to Morton.

The court's decision underscored the importance of thoroughly evaluating medical evidence and ensuring that the statutory criteria for veterans' entitlements are appropriately applied. By setting aside the original decision and substituting its own, the court emphasised the need for the Commission to rigorously assess claims in accordance with the relevant legislative provisions.

Orders

Orders of the court

For reasons given orally the decision under review is set aside and the Tribunal substitutes the decision that bipolar disorder and alcohol abuse are defence caused within the meaning of s70 of the Veterans’ Entitlements Act (1986), with effect from 24 February 1999. The matter is remitted to the respondent for assessment of the rate of pension payable.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		TERENCE MORTON